STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: J.W., J.W., and J.S. October 1, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 13-0389 (Ohio County 12-CJA-8, 9 & 10) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father, by counsel Gerald G. Jacovetty Jr., appeals the Circuit Court of Ohio
County’s order entered on March 20, 2013, terminating his parental rights to J.W., J.W., and J.S.
The West Virginia Department of Health and Human Resources (“DHHR”), by Lee A.
Niezgoda, its attorney, filed its response. The guardian ad litem, Joseph J. Moses, filed a
response on behalf of the children in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in terminating his parental rights to the children and in
terminating his improvement period.
This Court has considered the parties’ briefs and the record on appeal. The facts and
legal arguments are adequately presented, and the decisional process would not be significantly
aided by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
The DHHR filed the underlying abuse and neglect petition based on petitioner’s
treatment of child J.S., including allegations that petitioner physically assaulted J.S., grabbed J.S.
by the throat, and blamed J.S. for being referred to the DHHR. Petitioner threatened to kill J.S. if
J.S. returned home and admitted punching J.S. in the face. Petitioner waived a preliminary
hearing, and the circuit court ordered the children into the legal and physical custody of the
DHHR. At the adjudicatory hearing on June 29, 2012, petitioner admitted to perpetrating
physical abuse upon the three children and he was adjudged to be an abusive parent. By order
entered March 20, 2013, following a dispositional hearing, the circuit court terminated
petitioner’s parental rights and terminated his improvement period. The circuit court found that
petitioner refused to believe he had done anything wrong, threatened harm on individuals
involved with the case, and had not met the terms of his improvement period because he had not
received the necessary mental health treatment. In light of petitioner’s failure to complete his
improvement period, the circuit court found that it was in the best interests of the infant children,
and necessary for their welfare to terminate petitioner’s parental, custodial, and guardianship
rights. It is from this order that petitioner appeals.
The Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de novo
review, when an action, such as an abuse and neglect case, is tried upon the facts
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without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether
such child is abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed. However, a reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must affirm a finding if
the circuit court's account of the evidence is plausible in light of the record
viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T. 228 W.Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner argues that he should be granted an improvement period. Petitioner
asserts that he has acknowledged his problem, attempted to participate in therapy services, and
was making efforts to correct the problem. The circuit court specifically found, however, that
petitioner was unwilling to believe he did anything wrong and failed to cooperate in obtaining
mental health treatment. Additionally, the circuit court found that petitioner’s issues with anger
and paranoia were not in control because he made threats of harm against people involved in the
case, in addition to his own children.
This Court has stated that
“in order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the
perpetrator of said abuse and neglect, results in making the problem untreatable
and in making an improvement period an exercise in futility at the child's
expense.” West Virginia Dept. of Health and Human Resources v. Doris S., 197
W.Va. 489, 498, 475 S.E.2d 865, 874 (1996).
In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010). As such, it is clear from the
record that petitioner was not entitled to an improvement period below.
This Court finds that the circuit court was presented with sufficient evidence upon which
it found that termination was necessary for the children’s welfare. A review of the record reveals
there was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future, due to petitioner’s failure to acknowledge his problem and ongoing
issues with anger and paranoia. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are
directed to terminate parental rights upon these findings. This Court finds no error in the
termination of petitioner’s parental rights.
This Court reminds the circuit court of its duty to establish permanency for the children.
Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
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At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules of
Procedures for Child Abuse and Neglect Proceedings for permanent placement of
an abused and neglected child following the final dispositional order must be
strictly followed except in the most extraordinary circumstances which are fully
substantiated in the record.
Syl. Pt. 6, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Moreover, this Court has stated
that
[i]n determining the appropriate permanent out-of-home placement of a child
under W.Va. Code § 49-6-5(a)(6) [1996], the circuit court shall give priority to
securing a suitable adoptive home for the child and shall consider other placement
alternatives, including permanent foster care, only where the court finds that
adoption would not provide custody, care, commitment, nurturing and discipline
consistent with the child's best interests or where a suitable adoptive home can not
be found.
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
For the foregoing reasons, we find no error in the decision of the circuit court and the
termination of parental rights is hereby affirmed.
Affirmed.
ISSUED: October 1, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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